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I spoke with Mary Engle, associate director for Advertising Practices at the FTC, about what both YouTubers and publishers should be considering when it comes to disclosure.

Mike Rose, Blogger

October 14, 2014

7 Min Read

It's been several months since Gamasutra investigated the ethics of paying for YouTuber coverage for video games, and the disclosure that is required in these circumstances to meet legal requirements. But while some YouTubers have taken this on-board, many others have actively ignored the advice, or questioned whether they really need to provide the disclosure suggested. Numerous YouTubers have been in touch with Gamasutra in the last few months, both to question exactly what sort of disclosure is required of them, and to provide plenty of examples where big-name YouTubers and YouTube networks are telling their clients to ignore the advice. As a result, Gamasutra decided to get back in touch with the Federal Trade Commission to delve into the specifics of what sort of disclosure is required for video game YouTubers who are taking money from developers, publishers and marketing firms. I spoke with Mary Engle, associate director for Advertising Practices at the FTC, about what both YouTubers and publishers should be considering. I talked to you several months ago about disclosure, but now there's still a lot of confusion and uncertainty regarding exactly how disclosure on YouTube videos needs to happen - I've heard from numerous YouTubers that the biggest YouTube video game networks are advising their groups to ignore any new advice and continue burying disclosure in the description of YouTube videos. So I wanted to circle back around to you again and ask: On a YouTube video, if a person has been paid by a developer, publisher or marketing firm to make the video, what sort of disclosure is required? Engle: We don't specify the exact words, but the idea would be that they say "This is a paid review," as simple as that. They could use other words to explain that. I don't think we've stated that you need to say the company behind the product. So you say "review" - is it only on something that is classified as a review? A lot of YouTubers have been claiming that what they do isn't "reviewing" games. They just make videos. There are some big-name YouTubers who specifically state that they are not reviewers, therefore they shouldn't need to disclosure in the same way that reviewers should. Is that the case? Engle: Ah, I see. No, that's not the case. The idea is that if you're providing an endorsement of a product, it doesn't have to be a review. You don't have to call it a review. It also could be a small mention - it's hardly a review really, but it's an endorsement. If you are paid or compensated, then yes, you should disclose that you are paid. So the disclosure itself, where does that need to be? In the video itself? Engle: Yes. That would definitely be the best practice. Theoretically, you might have some sort of disclosure underneath, but there's a good chance consumers won't see that. So the best thing is for it to be in the video itself. Yeah, we mentioned last time, when YouTube videos are embedded in websites outside of YouTube, the description that is underneath the video isn't viewed any more - you can't see it at all. Engle: So yeah, in that case, it would need to be in the video, otherwise that's not fair. So does that mean it always has to be in the video then, since any YouTube video can be embedded? Engle: Yeah, putting it that way... the reason I hesitate is because it depends on who was embedding it. If an independent third-party decided to embed the video in their website, but they were just doing it on their own, and they had no relationship with the YouTuber - that would not be considered advertising, because it was truly independent. It wasn't sponsored by the advertiser.

"It's the responsibility of the publishers, developers etc., to tell YouTubers that they need to do this disclosure."

So there's a possibility of this sort of independent use, but the thing about it is - if that happened, we could no pursue the advertiser and say "You failed to disclose that this person was paid by you." But really, because of that possibility, it would make sense for them to have the disclosure in the video itself, so that it does get passed on, and it stays with it. Has the FTC been talking specifically about YouTubers? Has disclosure on YouTube videos been discussed heavily internally? Engle: We have given guidance about that, and it's come up in other contexts. So far we have felt that our general principles are flexible enough to apply to the different contexts. But we can always think about doing some FAQs to highlight specific scenarios. The basics are that the disclosure has to be in words that the consumer can understand - it can't just be a url or a link, it has to be in a place where consumers will see it. Certainly as a practical matter, the best thing would be to put it in the video itself, and for the person to say it. I've talked to YouTubers who have said that since they've started putting disclosure at the start of videos, they've found that there's been a large dropoff of people watching the video. Within seconds of the disclosure happening, a good portion of viewers are clicking away from the video. Engle: It shows it's material to consumers, huh! [laughs] And it's the responsibility of the publishers, developers etc., to tell YouTubers that they need to do this disclosure. It's absolutely their responsibility to have a reasonable monitoring program in place to make sure that they are adequately disclosing. Then of course, the YouTuber is the one who actually has to provide it, because it's within their control. But legally, they're both responsible. Is Google/YouTube legally at fault in any way? Should Google be telling YouTubers exactly how they should be disclosing properly? Engle: No, Google doesn't really have any responsibility, as a platform. If they're not involved in formatting it, they're just the platform, and they probably wouldn't have any legal responsibility. It could be different if - we've told Google that when it comes to their search engine, they're the ones who format the ads, so they have responsibility there. But my understanding is that Google doesn't control the presentation of the videos. As part of investigating all this, I've found that one of the problems is that it can be difficult to even spot non-disclosure, or inadequate disclosure, to the point that you feel safe reporting it to the FTC. Lots of YouTubers have been emailing me anonymously, saying that they want me to look into it, since they feel silly reporting other YouTubers to the FTC based on what appears to be flimsy or zero evidence. Engle: They can still complain to us, because if we get enough complaints - I mean, we can't investigate every complaint, because we get hundreds and thousands of complaints - but if we get enough complaints, we can do an investigation. If we actually investigate a publisher, we can compel them to tell us and show us what they're doing. Legally they have to. They could theoretically lie to us, but that would be highly risky. So it's still worth complaining to us, even if you feel like you don't have good evidence. If this is as prevalent as you suggest, we can do investigations. We actually have a couple open right now about what is happening with these kinds of reviews. People can file a complaint online at our website. With regards to providing a FAQ for YouTubers, that could be brilliant to have - I've seen plenty of YouTubers linking pages on the FTC website and claiming that the rules currently laid down allow them to not provide the disclosure you're talking about. Do you know if this is going to happen anytime soon? Engle: It's something we're looking at more broadly, because it's not just YouTubers - it's Pinterest, other social media etc, where we're hearing it might be more useful for us to do some more targetted questions and answers. So I can't give you a timeline of when we might do this, but it is something we're getting a lot of questions about and interest in, so I feel like it might be worthwhile to do so.

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